Full Text Of The PROTECT IP Act Released: The Good, The Bad And The Horribly Ugly

from the and-here-we-go dept

Yesterday, we got our hands on a leaked copy of the "summary" document put together by those writing the new version of COICA, now renamed the much more media friendly PROTECT IP Act. It looked bad, but some people complained that we were jumping ahead without the actual text of the bill, even if the summary document was pretty straightforward and was put together by the same people creating the bill. Thankfully, the folks over at Don't Censor the Internet have the full text of the PROTECT IP Act, which I've embedded below as well. Let's break it down into the good, the bad and the horribly ugly.

The Good:

It looks like the drafters clearly heard some of the complaints that many have raised concerning the attacks on due process and free speech and have scaled some of them back (though, not as much as they want you to believe -- but we'll get to that). Officially, the bill limits the "definition" of what constitutes a site dedicated to infringing activities. While COICA clearly focused on the domain names as the party, PROTECT IP also recognizes that regular lawsuits should be brought against those responsible, rather than just focusing on taking down the site (in legal terms, it requires an "in personam action" -- against the person -- be filed before an "in rem action" -- against the property). This could, in theory, provide more due process for those running such sites.

The bill also attempts to make it clear that, officially, PROTECT IP does not expand secondary liability. In addition, the bill would require that the Attorney General (or the copyright holder) send notice to those impacted "upon commencement" of such actions. This is an improvement. Today, with domain seizures, it takes weeks or sometimes months for site owners to be given notice. On top of that, PROTECT IP no longer includes the ability to go to domain registers and registrars and require them to remove domains or hand them over to the government. Finally, it attempts to narrow the scope of what qualifies as being covered by the act under the phrase "dedicated to infringing material."

The Bad:

When you dig into the actual text, nearly all of these "good" changes are either not really true, or are greatly limited by other aspects. On the "limit" to the definition of what sites qualify, it's still incredibly broad:

The term "Internet site dedicated to infringing activities" means an Internet site accessed through a specific domain name that has no [substantial/significant] use other than, or is designed, operated, or marketed by its operator persons operating in concert with the operator, [and is in fact,] primarily as a means for --

enabling or facilitating the reproduction, distribution, or performance of copyright works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, or offering goods or services in violation of section 1201 of title 17; or

enabling or facilitating sale, distribution, or promotion of goods, services or materials bearing a counterfeit market, as that term is defined in section 34(d) of the Lanham Act;

[provided that there is no objectively reasonable interpretation of an express license between the owner or operator of such Internet site and the copyright owner or trademark owner or an agent thereof that authorizes the activities;]

That's somewhat narrower than COICA's terminology, which is here:

For purposes of this section, an Internet site is 'dedicated to infringing activities' if such
site-

‘‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘‘(2) is--

‘‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer--

‘‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

‘‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and

‘‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

Narrower? Sorta... but still quite open and vague. Under the new definition, it seems you could still claim that a service like YouTube (especially in its early days) could have run afoul of this law. If this had been in effect a decade ago, we might not have a YouTube today. Think about that for a second... It also seems like nearly all music blogs are illegal under this definition. That doesn't seem good.

As for requiring an in personam action, which in theory would allow for a court hearing and the individuals or companies who operate sites targeted by this bill to get a fair hearing before the site is taken down or otherwise blocked or limited, there's a pretty big loophole there. It says that if either the Attorney General or the copyright holder "was not able to find" the registrant or owner of the site or "no such person found has an address within a judicial district of the United States," then they can skip the whole in personam action and jump straight to the in rem action, against the website itself. That's a pretty big loophole.

As for the promise that it doesn't expand secondary liability, that's nice to say but it's simply untrue. By its very nature, the entire purpose of the bill is to extend secondary liability to third parties that had previously been almost entirely immune from such liability: ad networks, payment processors, search engines and ISPs now face liability if they do not disconnect service from certain websites. That is, without a doubt, a pretty massive expansion of secondary liability, no matter how many times the drafters of this Act insist it's not.

The whole thing about no longer going directly after domains via registrars and registers is a red herring. As is clearly noted in the summary, the whole reason for this is because the drafters figure this is redundant, since ICE has already shown with Operation In Our Sites that it can already seize such domains. So, it can "give this up" without really giving it up at all (though, potentially this leaves the government open to a loss in court on this issue).

Also bad is that the bill clearly encourages service providers to take "voluntary" action against sites that those providers deem to be infringing. The bill provides specific liability protection, so that if these providers cut off service to a site under the incorrect belief that it was dedicated to infringing activities, there's no remedy for those sites.

The Horribly Ugly:

The PROTECT IP Act includes, as mentioned, a "private right of action," which COICA did not contain. This lets copyright holders make use of some of the aspects of the Act, which are completely unnecessary, considering they already have reasonable options under existing laws. This is yet another case of regulatory capture, in which a private industry is being granted additional, extraordinary and unnecessary powers to stifle new technologies and innovation, because in their estimation it infringes on their copyrights. Remember the long list of new innovations that the entertainment industry has so deemed, including (but not limited to): player pianos, radio, cable TV, the photocopier, the VCR, the DVR, the MP3 player, YouTube, etc.

Haven't we learned by now that every time the industry screams that it's being harmed by infringement, the reality is almost always something entirely different?

Also on the "horribly ugly" side of things is the extension of this bill to cover search engines. That is, when the Attorney General uses the law, one of the things that can be done is obtaining an order saying search engines must no longer link to certain sites. This seems like a massive form of meddling in how a search engine operates. I also can't see how it could survive First Amendment scrutiny. It's a blatant case of the government telling a search engine what it can and cannot link to in its index.

Similarly, remember that part in "the bad" section about voluntary actions? In the section on such voluntary actions in the bill, not only does it include search engines (i.e., this is the government urging search engines to censor on the copyright industry's behalf), but it also includes domain registers and registrars -- who, you may recall, had been left out of the other parts of the bill. So despite most of the bill not applying to them, domain registers and registrars are now encouraged to simply take down sites on a voluntary basis, if they believe they're dedicated to infringement. And if they do so, they are immune from liability for damages caused. In other words, pretty much any domain can be disappeared by its register or registrar with little real recourse, and, in fact, there is encouragement for this to happen.

All in all, it's clear that the drafters of this bill sought to cut off some of the biggest criticisms that were raised last time, in hopes of appeasing enough critics to get this passed, but left in plenty of loopholes and added some even worse parts to the bill as well. It's a bad bill by any measure and should not become a law.

Re: The internet routes around all obstructions ...

We have already begun forming working groups to engineer around nonsense like this. We will not permit the inferior people in government to stop progress, and the final destruction of the idiotic concept of intellectual "property". There is a future coming, a bright, wonderful future of knowledge and culture and education, and anyone who stands in the way of it is nothing but a target to be destroyed.

Re: Re: Re: Re: The internet routes around all obstructions ...

TOR? LOL

"think I'll rip off a movie. I'll come back in a week when it's done downloading."

And the people that facillitate TOR have no interest in letting dumbass pirates wreck their system; it's to help people communicate in situations where they otherwise can't. They openly say that they boot pirates whenever they find them.

Doesn't law enforcement have anything better to do than to go after harmless infringers? Can't these people go after real criminals instead. Why is the attorney general wasting precious tax dollars enforcing corporate plutocracy?

Government imposed monopolies (and that includes IP) costs jobs. The problem with our economy is that there are way way way too many government imposed monopolies everywhere you turn. That's what's costing us jobs.

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"Jobs and industry are always among the top priorities of government."

Sounds like you're communist. You think job security is the governments job. It's the governments job to ensure jobs and protect industry. Almost like Russia. You're obviously not a free market capitalist at all.

Guess what. Communism doesn't work. Government imposed monopolies don't work (at least not for the public. Sure what Russia does works for the elite, but not for the public).

"IP is probably the most important economic contributor to growth in 1st world countries."

Re: Re:

"IP is probably the most important economic contributor to growth in 1st world countries.

Really?
So... perhaps you can explain to us why those countries which have largely abandoned intrest in manufacturing and are pursuing an IP economy have trade deficits, while those countries which are aggressively pursuing manufacturing (and are usually more casual about enforcing IP ) are running trade surplusses?

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Yes, China has cheap labor. The sad fact is that Adam Smith's invisible hand is rapidly producing wealth in that direction. American consumers and the American government are living on borrowed money, and by extension borrowed time. America runs the risk of becoming insolvent due to an over reliance on imaginary property and an inflated standard of living. After America's collapse, China might experience economic upheavals due to the social inequality, but only if the entire country does not remain Lawful Neutral.

True: you can't run an economy based on slave labor in a first world nation, but you also can't supply two cars in every garage and a plasma tv in every bedroom in any country indefinitely.

Re:

Seriously, we have all these expensive government agencies and just about every one of their purposes is to help ensure corporate plutocracy.

The department of homeland security - supposed to protect us against terrorists - wasting time protecting corporations against infringement (if anything shouldn't that be the USPTO's job or something?).

The DOJ, supposed to be about ensuring justice, but instead they're about protecting corporations and continuing to help enforce their government imposed monopolies (GIMs).

Attorney General, supposed to be about protecting citizens, but now they're about protecting big industry instead.

FDA, supposed to be about protecting consumers, but they're more about protecting big corporations from competition.

FCC, supposed to be about wrongfully granting corporations monopoly use of public airwaves at public expense, and that's what they do.

When does the U.S. start to resemble Russia enough for us to be named the United States of Russia?

Our government spends so much effort passing and enforcing so many wrongful GIMs on just about everything that it's no wonder why our economy is struggling and income inequality is only getting worse. Monopolies on their own reduce aggregate output, they cost jobs, and they cause income inequality. Add to that the taxpayers cost of enforcing all these wrongful monopolies and you can see why our economy is in such a mess, because all that money that could be better spent on increasing aggregate output is being spent on pointless law enforcement and going after victimless criminals instead.

and why do we need a Department of Homeland Security, a Department of Defense, an FBI, a CIA, etc... with all pretty much having about the same purpose, go after terrorists/criminals (Oh, but the DOD and the DOHS goes after 'terrorists' while the FBI goes after 'criminals', and the CIA .... , we need to make such a distinction because one expensive department costing tons of tax dollars is too incompetent to go after both at once). We waste all this money on these people and, by and large, their collective effort doesn't catch very many real terrorists or real criminals at all. Easier for them to go after victimless criminals, like copy protection infringers, I guess.

You want this problem fixed, vote for Ron Paul. He advocates abolishing the department of homeland security and I, for one, agree. We already have the department of Defense and all these departments with about the same purpose (the distinctions are pretty minor, it's perfectly possible and more efficient for one agency to go after a wider variety of criminals) and this creates conflict and confusion and unnecessarily expensive redundancy.

Re: Re:

and another thing that really bothers me about all these federal agencies is that they're a hybrid of the executive branch and the legislative branch. They get to both write the law and enforce the very laws they write (ie: the FDA, and the others).

To me, that's borderline unconstitutional. The founding fathers tried to separate those who wrote the law from those who enforced them for very good reason and for the government to simply circumvent that through these federal agencies is, IMO, nonsense.

Sure, the judicial branch still gets to interpret the law, but the FDA has been known to try and ignore various rulings (only to be dragged back to court again).

The reason why those who write the law and those who enforce it should be separate is to better give power to those who interpret the law to stop a law from being enforced. If any one entity can gain two of these powers then that one entity could potentially become a tyrant. If an entity can both write and interpret its own laws then the enforcement agency simply enforces whatever that entity says and that entity becomes a dictator. If an entity can write and enforce its own laws then that entity can simply ignore the rulings of the entity that interprets the law. If an entity can interpret and enforce its own laws then it can interpret any written laws how it likes and enforce its own interpretation of them. The judicial branch can't enforce its own decisions because a system that allows the executive branch the ability not to enforce a bad interpretation serves as a check to any bad interpretation made.

Allowing separation of enforcement from law creation also helps ensure that only good laws are enforced. The idea is that if a law is a good law then law enforcement agencies will enforce it. If it's a bad law, then they will tend not to. Enforcement can only enforce so many laws and they will carefully select what laws to enforce. This will also help limit the number of laws enforced to the more important ones which cuts costs as well.

But if you can write and enforce your own laws then you can make sure that every tiny bad law you write is enforced.

If leaked, why isn't this stuff being officially released to the public (not just the corporations)? Why must we rely on leaked information to participate in the democratic process. Corporations get a longer time to consider new legislature than the citizens, apparently.

This stuff should be officially released. This isn't democracy, it's plutocracy.

Anyone who thinks that a business who's product suddenly becomes infinitely replicable and instantly transportable to anywhere in the world for zero cost isn't going to have to change drastically needs to have their head examined. No one would find it surprising to see a company in that position cease to exist entirely. The record and movie companies fall into this category.

The only way to avoid having to change would be to either destroy all digital communications or put in place a global totalitarian police state. We can conclude that the actions of companies in this situation will, intentionally or not, tend toward one or both of those ends

It looks like they're well on their way to both and I expect they won't ever stop trying.

This is just silly. The word "domain" appears often, but a domain is just a very small portion of an accessible way to access content legally or otherwise. In what way would this prevent content that wasn't on a domain or TLD or DNS addressable manner? What happens when ipV6 makes inroads to every electronic device, and my fridge is a server that has infringing material? You gonna shut down all fridges?

In what way does this address the speed at which illegal content can move or appear, or migrate to another service? Answer:It doesn't.

In what way does suppressing American Search engines make an effective way to protect your content? Answer: It won't.

Look at the edonkey network. As it stands now, this act would do zero to remove any content from that IP infringing network. There are hundreds of networks and technologies like edonkey, and growing.

It enrages me that we pay taxes for legislation like this, that I am a part of a country that would even bother with such silly legislation that doesn't have technical and legal loopholes.

It isn't clever even from the perspective of an IP Protectionist standpoint!

It will fail, it will produce far more methods of infringement than currently exist. Mike is correct that opportunity is passing these industries quicker than they suspect.

"Also on the "horribly ugly" side of things is the extension of this bill to cover search engines. That is, when the Attorney General uses the law, one of the things that can be done is obtaining an order saying search engines must no longer link to certain sites. This seems like a massive form of meddling in how a search engine operates. I also can't see how it could survive First Amendment scrutiny. It's a blatant case of the government telling a search engine what it can and cannot link to in its index. "

Search engines already screen for child porn. Does that pass your First Amendment muster? And domain name registrars seem to have taken actions on child porn too. Free speech issue?

The bottom line here is that freeloading (which really is what the debate is about) is going to become incrementally more difficult. Dedicated infringers may have little trouble, but casual ones who just do it because it's easy and riskless will do far less. The foreign pirates who steal and monetize other's content for personal profit will have a much harder time. Tough shit.

Re:

Are you seriously comparing the seriousness and impact of the violation, abuse, and life-destruction of a child to declining industry profit margins?

Look, you might as well face reality. You're just not going to be able to make as much money doing what your doing anymore. It's okay. It happens to people in a lot of industries all the time. What makes movies and music so special?

Yeah, Mike should marry Trent Reznor cuz he likes what he does so much. But he's sure doing a helluva lot more with his time creating than this god forsaken bill that you seem to support. He's giving his fans something to like. What does this bill do other than put the rest of the internet on the offensive in fighting against BS?

I'll say to you again. The market has changed. It's time for all of these big companies to change along with it. Sneaky bills like this that are BAD, BAD, BAD, aren't going to change behaviors. Neither is not understanding what your customers want. If you go against your market, less money for you. Tough shit.

Re: Re:

"Trent Reznor cuz he likes what he does so much. But he's sure doing a helluva lot more with his time creating than this god forsaken bill that you seem to support. He's giving his fans something to like."

Trent Reznor had millions of fans and millions of dollars in sold out stadium tours before piracy. Even a 40% cut in his revenues still maintains him as a multi-millionaire.

*Yawn*

Show me someone who's accomplished the same WITHOUT selling their IP and WITHOUT going through a major label.

If the famous Mike Masnick recipe is correct, surely there should be too many equally impressive stories of success to count.

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Wow, do we really have to go back and cover artist after artist after artists that has made this work?

We've already covered the 'but that only works if their big' followed by the 'but that only works if their small' followed by the 'well, maybe that works if their really big or really small, but not for the general artist' and every time we've seen example after example after example of artists all over the place making it work and work well.

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Same as always except one thing: no middleman.

The record and music studios have been eliminated, they just haven't figured it out yet. It's over for them and their shills. I must admit, they're death throes have been impressive, but they are just that: death throes.

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Joss Stone - hates the music business, which involves really bad contracts catered to labels. Believes that filesharing hasn't hurt her while she makes a ton of money in concerts. And because you don't believe it: Watch and learn bucko

Girltalk - release music online, sell concerts. Had a job in the chemical field and decided to focus on his music because of copyright and patent law interfering with innovation.

Need more examples? I'm sure that the "without selling music" was meant to be a challenge, but all of the people here (save maybe Joss Stone) made money in other avenues. Oh, without major labels. *thumbs up*

Re: Re: Re: Re: Re: Re: Re: Re:

"without selling music or using major label infrastructure"
Met that requirement (one exception)

"become household names"
requirement met

" made A SOLID INCOME."

Me: but all of the people here (save maybe Joss Stone) made money in other avenues

You're trying to argue semantics. It's not whether you've heard about them or not. The fact is, they all have their own fans who enjoy what they do enough that they're supported by filesharing, touring, twittering, among other avenues of making their names bigger.

People can create their own networks that can't be traced from a couch, you will need to put legs on the ground scoring the neighborhoods.

Want to see sneakernets in action just go to any workplace in America. Everyone is exchanging files all the time.

Not to mention that people can create their on internet overlay that will sit on top of the internet but be a total self contained network and internet overlays are infinite you can create one for each day of the year, for every year till the end of time.

Tech people already know the obvious, filesharing is not going away anytime soon. Which is bad, people should migrate to other forms of entertainment that are free as in freedom, but because it is so easy to ignore those laws and you people, this probably will never happen.

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"Still pretending you can be invisible to the government on the internet? You're so two thousand and late...And um, yeah, if it's easier to access, it's easier to track. duh. You didn't really think that through, did you?"

Actually, I could go on about distributed encrypted file systems, distributed proxy networks, and onion routing but that would fall on deaf ears and would be a waste of my time.

the music industry constantly complains that ads don't make enough money

"Once again, duh, and once again you didn't really think that through."

I was actually talking about the record labels and streaming sites, free download sites, not infringing sites. The advertising doesn't make anywhere near the amount the record labels would like. Also they say it devalues their music.

People that do not truely understand technology, trying to pass laws about technology to prevent a business inevitability. Not a good idea, there are to many inevitable and unforeseen consequences.

Re: Re:

@Hephaestus:

"LOL ... U R 2 Funny ... what profit? From ads, the music industry constantly complains that ads don't make enough money, and are not a business model they want to try. "

That was the most breathtakingly stupid thing I've ever heard. Rogue sites costs are nearly zero. What does it cost to steal creative output and offer it for sale on a website? Almost every dime a rogue site takes in is pure profit. Are you really so desperate that you advance a cockamamie argument like that?

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You keep saying steal, but steal what?

Market share? future sales? potential sales?

The only rogue people inside society is a small group of people trying to end freedoms and liberties for their own personal gain, despite being told by everybody on earth that if they do it they will pay dearly.

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Search engines already screen for child porn. Does that pass your First Amendment muster? And domain name registrars seem to have taken actions on child porn too. Free speech issue?

Blocking voluntarily is not a free speech issue. Having the government tell them to block is. And, yes, even if it's a child porn site, if there hasn't been a legal ruling against them (see: CDT vs. Pappert).

The bottom line here is that freeloading (which really is what the debate is about) is going to become incrementally more difficult.

I would suggest that the only people who believe this don't understand technology.

Dedicated infringers may have little trouble, but casual ones who just do it because it's easy and riskless will do far less. The foreign pirates who steal and monetize other's content for personal profit will have a much harder time. Tough shit

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And, seriously, if you think I support child porn sites, you're more clueless than already established. I do not. I am merely pointing out -- accurately -- that the law does not require third parties to censor such sites. I'm quite happy when the government goes after those responsible and gets the sites taken down through legal means. But that's got nothing to do with ordering search engines to block them.

And you know it.

And yet you lie, because you're scared, and deep down inside, in the part of your soul that you don't access much consciously... you know I'm right.

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The only thing I know is that you're a lying sociopath that loves to defend music piracy.

Heh. So you have no factual responses, so instead you resort to defamation.

I do not lie. I am not a sociopath and I do not defend, nor support, music piracy.

Why must you lie?

When are you going to pay the MusiCares charity the $500 you owe them?

If the terms of the bet are met, and you know quite well that they have not been, then I will happily donate money to MusiCares. Frankly, I'm tempted to do that anyway, because I think they're a good charity.

I find it odd that you keep bringing this up when you know the terms have not been met.

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No, you're a lying sociopathic slimeball that defends music piracy.

And the terms of the bet have been met: you said the ICE seizures would be ruled unconstitutional. They weren't. They weren't challenged. They aren't going to be challenged. Now pay up, you pathetic asshat.

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No, you're a lying sociopathic slimeball that defends music piracy.

You can keep saying that as many times as you want, doesn't make it true.

And the terms of the bet have been met: you said the ICE seizures would be ruled unconstitutional. They weren't. They weren't challenged. They aren't going to be challenged. Now pay up, you pathetic asshat

"If the seizure itself is challenged and at a final level it's deemed legal (i.e., Supreme Court, or at whatever court level this case ends), I'll gladly donate $500 to MusiCares, which is a good charity.

However, if it's deemed that the seizures were not in accordance with the law, then you donate $500 to the EFF."

The terms have not been met.

They weren't challenged. They aren't going to be challenged. Now pay up, you pathetic asshat

I am aware of at least three separate sites that are still working on challenges. The reason no challenge has been officially filed is that they are all currently in discussions with the Justice Department. So, perhaps we should wait, huh?

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Nonsense post is nonsense. Child pornography is not about censorship, it's about the real abuse and possible murder of children. Copyright infringement, being a civil issue, not criminal, does not cause physical or emotional harm or death to people who are unable to defend themselves. Or to anyone, really.

You continue to attempt to make this an emotional issue, and it is not. It is an economic one, and basic economics continues to show (as others continue to point out with citations) that infringement at the individual level does not harm IP, and in fact increases their economic advantage.

Re: Re: Why piracy should be protected at all costs!

Re: Why piracy should be protected at all costs!

Actually without Youtube many people would find it harder to advertise their stuff on the internet, not to mention the transfer of knowledge that is happening with doctors actually posting procedures to link to and show to others in their field.

Also is the source for all the stories Hollywood have transformed into movies to this day, conspiracy nuts go wild there and if you pay attention to what they say and what Hollywood produces you will see an striking resemblance. Hollywood have been stealing the ideas from the nutt jobs for decades know.

No longer just .com names

They want to go after foreign "non-domestic domains" now too.

And since the holders of those names probably don't have American addresses, the government can bypass the whole notification thing.

Even if what the site is doing is perfectly legal in their country, they could get nailed by this unless they can show that they block access from the US, don't ship anything to the US, and don't accept US dollars for any of their services. (Even if they take these steps, the site can fall victim to the shoot-first, ask questions later. Scratch that, it's not shoot first, ask questions later. It's shoot first and then let the person you just shot ask questions later.)

Re: No longer just .com names

This is curious distinction in the bill:

Financial providers have to only block transactions involving the US, but advertisers and search engines have to stop all advertising/links for the website, not just stop serving links/ads to Americans.

The only thing all this privacy-invading legislation is going to do is accelerate the birth of true darknets.

There are already encrypted, anonymized p2p software like OneSwarm (http://www.oneswarm.org/) and actual darknets like FreeNet (http://freenetproject.org/). There are also models for distributed DNS systems in the works (http://torrentfreak.com/bittorrent-based-dns-to-counter-us-domain-seizures-101130/). They just havent grown big enough to be adopted on a large scale (and thus gain web-equivalent performance).

Yet.

The problem is, once darknets are as easy to use as todays torrents, more serious crimes (like child pornography) will make use of it as well.

The only recourse the governements will have is to outlaw encryption, and thats when we know we live in 1984.

Next on the Senate's Agenda: A bill to make it mandatory to have DRM Thought Police Chips implanted in your brain to make sure you obey copyright. No Singing copyrighted songs not even humming. No Dreaming, thinking, or imagining a trademarked character, No quoting from a movie or TV show. Nothing.

Market system that works

Hrm ... if you look at the Android and Apple app market, they seem to have a successful model. Those apps that are too expensive, other people implement in other ways, and sell them for less. But most apps are worth the few dollars shelled out and the "artist" (the programmer) makes some money on their original idea, better implementation of it, or the adds embedded in it, depending on the model they choose. Many of the small, local artists I know have something similar going, with their sites and the money coming in.

Heck most of the movies I've watched in the last year have been produced by folks I know, with the capabilities that they have on their home computer.

I wonder, if this bill gets passed, if my friend, who is in a lawsuit with one of the big movie-producers, for stealing his idea, and is currently going bankrupt under the snow of lawyers, can get all their domains taken down for violation of his IP? Get all the movie-houses to stop taking credit-cards, if they have anything to do with this big theater? I can't say anything more about it, because one of the pieces of laywer-snow is a gag-order ... apparently big movie-houses don't want you to know that they steal other people's IP ... go figure.

PROTECT IP ?

This law isn't going to pass so I wouldn't worry too much. There have been so many proposed laws similar to this that have been shot down, this one will be no different. Also, a little FYI to the industry, file sharing has little to no effect on sales. Unfortunately, the quality of music has gone down considerably lately. I'm having trouble finding music that's even worth downloading, let along buying. Also, the artists don't make the bucks, the studio execs do. Those who make movies/TV shows actually lose a LOT of money before they start making profits.

Problems in the selective reading of the proposed law

I notice that the part about a lack of opportunity to dispute has been omitted but I would appreciate if you clarified that change to earlier readers who may have been mislead. Upon a second reading, I have some other problems with your argument.

"The bill provides specific liability protection, so that if these providers cut off service to a site under the incorrect belief that it was dedicated to infringing activities, there's no remedy for those sites. "

Actually no, there is a remedy for providers cut off under an incorrect belief. ISP's can only voluntarily cut off service if there is a [b]reasonable belief[/b] and [b]credible evidence[/b] of infringing activities. In other words if the ISP voluntarily shut off sites without a good reason they not only sour relationships with their customers, they can also make themselves potentially liable for damages based on that denial of service.

"It says that if either the Attorney General or the copyright holder "was not able to find" the registrant or owner of the site or "no such person found has an address within a judicial district of the United States," then they can skip the whole in personam action and jump straight to the in rem action, against the website itself"

It seems that the part requiring the due diligence of the AG in procuring the address, so this option presents a risk if used frivolously. If they fail to do so, the AG face a huge risk of getting the entire order thrown out when challenged for lack of process. Even if the defendant is outside the US the remedies that can be sought under in rem are much more limited than remedies are in personam jurisdiction.

Somewhat perplexed

Perhaps I am showing my ignorance, but if the presumption of innocence is a concept in a criminal prosecution of a corporation* by the Government (the 'Justice Department'), I must ask why then the corporate proponents of the PROTECT IP Act are lobbying that the Government (the 'Justice Department') be authorized to act on a complaint made by a corporation claiming a IP rights violation by a corporation – this seems like a step towards big Government, especially since it would authorize the Justice Department to involve itself in what are traditionally disputes of civil law.

If the PROTECT IP Act is implemented in its desired form, I will happily sit back and watch the casualties pile up from its unintended consequences. After all, if the presumption of innocence is a concept in a criminal prosecution of a corporation by the Government – this Act would give exclusive civil rights to an exclusive minority with executive protection from 'we the people'.

I am sure that the corporate proponents (and the drafters) of the (strike-patriot act-strike) PROTECT IP Act will attempt to ensure that certain corporate civil claims do not involve the Justice Department ('the Government') – but I am sure that would be for "Just" reasons :)

Re: Somewhat perplexed

The theory is exactly the same as one based on a complaint of fraud or trade secret misappropriation. Both concepts have civil and criminal aspects.

I'm not exactly sure where your argument regarding presumption of innocence plays in. The AG is required to establish the elements of the cause of action before the order can be given similarly to that of any other injunction or restraining order. Just as a court may issue a restraining order or injunction based on establishing the elements of fraud, it stands to reason that it should be able to issue an order regarding infringement after establishing the existence of infringement under the requirements of the law.

The idea of an exclusive minority means that it is an inherently defined group, however since anyone can become a copyright holder arguing that this concept applies to copyright does not connect.

I see a lot of pejorative concepts such as censorship, "we the people" and freedom of speech being thrown around but frankly there's a fatal disconnect in the reasoning. It also seems to overlook the fact that the inherent idea of protecting the rights to a creation is explicitly protected by the constitution.

The inherent problem is not in the concept of intellectual property itself but rather as to how the courts fine tune its analysis of fair use and similar exemptions from infringement. However, as shown in the Righthaven rulings, MDY v. Blizzard and other such cases this is already being done.

Corporations are a person, just an overrepresented one

I personally await the inevitable day when domain names are primarily under the thumb of big content, and addresses like 209.85.149.104, 87.248.122.122, 92.123.69.24 and 2.20.180.17 provide the end user with a simple choice between big content or yet to be accused content, all signed off with you're welcome on behalf of the United States Government.

Intellectual property law should never have become the dominant benchmark principle of law from which freedom of speech is judged. Criminalized speech should be the benchmark, not (as per the majority of case law) corporate copyright ownership. Some could claim that the Judiciary is the counter balance to ensure that free speech is maintained through finding a balance of rights between a copyrights owner and a non-copyrights owner through the principle of fair use of speech, however when the Judiciary determined that a corporation is a person, the corporate end of town was pretty much delegated the role of the de facto gate keepers of free speech:

1. Judiciary determined that corporations are a person;
2. Corporations may provide unlimited funding to political groups;
3. Political groups lobby/enact legislation to ensure their unlimited funding; return to point 2 and repeat;

A more basic universal principle that makes data copyright pointless is quantum physics. However that is something potential members of Congress don’t need to know about to get elected, and often need to know even less about if elected.

Here is an example copyright protected quote:

“Speech should be free, and forever free it shall be”.

Here is the exact same quote (copyright protected because the original quote is copyright protected):

The two above examples may look very different, but according to copyright law they are identical. Free speech is in the hands of the corporations now; not the Judiciary and not Congress; refer to above points one, two and three.

The up side is copyrights have an expiry date, the down side is that in order to be free to copy a copy protected speech you simply need to live long enough to see its copy protection expire.

Re: George OilWell, 1984

Multilogging is not possible, maybe we could have a circle or helical chat with participants (their pictures or movies and voices), 4 dimensional.

Or organize locally, face-to-face, and keep the artifically chartered "person" given the "privilege" of human persons under the US Constitution.

The Bill of Right is "We the People", Corportions are the Robots, it is in our interests to make them indistinguishable in context and friendly.

Science Fiction and Fantasy helps us, monetizing commodities is supposed to eliminate only one variable, but life is more complex, money only now cotton paper Federal Reverse Notes. Try the mathematics of finance.

WHAT ARE TAKING ABOUT?

I can already imagine people stummbling on this article and blantly reeading something about YouTube and assuming it's threatened.. therefor concluding that they know the PROTECT IP Act and they are not for it. This is absurd.

First of all, YouTube now has a technology that automatically finds the song that a user is uploading illegally and tracks the view count on that video and pays up to the artist accordingly. Now I do thank you for mentioning "specially in it's early days" so I assume you know about this. Having said that, I'm sure some videos on YouTube are going to be deleted.. so what? Now you can't listen to Adele's full album, for example. If that tears anyone up that much, maybe they should consider buying the album. This leads me to my next point..

"This is yet another case of regulatory capture, in which a private industry is being granted additional, extraordinary and unnecessary powers to stifle new technologies and innovation, because in their estimation it infringes on their copyrights. Remember the long list of new innovations that the entertainment industry has so deemed, including (but not limited to): player pianos, radio, cable TV, the photocopier, the VCR, the DVR, the MP3 player, YouTube, etc. "

Let's just say this Act was horrible and everything in it was wrong and unjust.. HOW IN THE HELL IS THIS AN ACT AGAINST NEW INNOVATION? Everything on the Internet that we are ALL worried about is already out in the market with a price tag on it. If anything, not having enough interesting video or music free on the net will open up a whole new batch of creative content.

The only thing that hurts creativity is creative people not getting money for their works, in turn not being able to commit to their talent.

Nothing personal to the author (uncredited), but I don't think he/she has ever made anything creative of his/her own. Creativity does not have a limit.. it's not a day job where you go home at 6pm. It's not part-time. If you're creative, it's everything and ALL you ever do or want to be doing. The only thing that will stop it is if the creator has no money to live a descent life so that they can create without having to worry about the months rent.

McCarthyism

This bill is an attempt to return to 1950's McCarthyism. It's disgusting. Report your neighbor because failure to do so implies that you are infringing on copyrights and this thus means you will be reported. This bill is basically just a structure for anyone with money to target whomever they feel like and get their websites removed from the effective general consciousness. Even better, you can do so without informing the person you're targetting. Just prove that you tried to find them and failed.
But really, if you're the government, you don't even have to go to court to get websites put on this list. The DOJ can add whomever they feel like and "encourage" people to enforce it. By encourage we do, in fact, mean do it or you're a communist. Because if you're not blocking the people the DOJ says might be infringing copyrights, then you are aiding those infringements and therefore are infringing yourself.

too bad

Eric Vermote

I am one who also believe the Internet needs government regulation in America (very serious government action in France with new anti-piracy law called HADOPI starting to be officially applied for example). Eric F. Vermote illegally used P2P in Maryland during 2003-2004 (bootlegs & audio files for his car). This man with a IT degree works for NASA & the University of Maryland but went to jail for automobile theft in Florida... he is definitely not at all scrupulous with music too obviously and filed a defamation legal suit in France against me in July 2009 stipulating he never got involved in on-line piracy because he is a manipulative liar & because the case involved never got officially substantiated or couldn't ever be substantiated; my point is that if the Internet had been better regulated by the US government Eric F. Vermote would not have had the opportunity to lie against me and pretend what I accused him of (on-line piracy) is frivolous. On-line piracy cases almost absolutely never get substantiated unfortunately! Damien Bizeau - Classical Music, France.

In Vain

There is no way to stop pirating while allowing internet freedom. It should be the industry's responsibility to resolve their issues, after all they do make billions off of consumers, I am sure they can afford it. You don't like the fact that people like to go to blogs about YOUR product or music instead of your commercialized, ad heavy, commercially driven crap? Sounds like a kid crying on the playground because no one would play with him.

what is extremely upsetting is that because of how broad this is, it would be more than easy for big business to look at a small business website, and go " they are doing well, lets screw with them." then say that they are infriging on one copyright or another, and close them down.

That of course is assuming that the person who wrote this isn't in the pocket of big business.

Not stupid at all...

Just because we think they are making a mistake doesn't mean they are. This bill is clearly intended for all media. If I were to, oh say, compare this comment to the Rolling Stones...I've just committed copyright infringement. You see, it can be argued that I mentioned the Rolling Stones in this post to increase Google search results, therefore, profiting off of their name, which could be construed as infringement. Thank goodness names can't be copyrighted. ;c) They can be trademarked though, which means I could be in even more trouble with this post. This is how we make free speech and exchange of ideas illegal. Any questions?